People v Colonramos (Elba)

[*1] People v Colonramos (Elba) 2015 NY Slip Op 51482(U) Decided on October 7, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 7, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter Jr., Ling-Cohan, JJ.
570116/15

The People of the State of New York, Appellant,

against

Elba Colonramos, Defendant-Respondent.

The People appeal from an order of the Criminal Court of the City of New York, Bronx County (Shari Ruth Michels, J.), dated September 18, 2013, which granted defendant's motion to dismiss the accusatory instrument in the interest of justice.

Per Curiam.

Order (Shari Ruth Michels, J.), dated September 18, 2013, reversed, on the law and the facts, accusatory instrument reinstated, and matter remanded for further proceedings.

The power of the court to dismiss an accusatory instrument in the interest of justice, without the consent of the prosecution, is to be exercised most sparingly, and only in those cases where some "compelling factor" (CPL 170.40[1]) warrants the conclusion that the court should substitute its discretion for that of the District Attorney, the State officer normally charged with the responsibility of determining when and in what manner to prosecute a suspected offender (see People v Keith R., 95 AD3d 65 [2012], lv denied 19 NY3d 963 [2012]; People v Dunlap, 216 AD2d 215, 217 [1995]). We find no such compelling factor in this case. Defendant was charged with attempted third degree assault and menacing, based upon an incident where she allegedly threatened to kill her brother and then punched him in the face with a closed fist, causing bruising and a laceration above his left eye. Particularly in light of these charges, this is "not one of those rare and unusual cases which cries out for justice beyond the confines of conventional considerations" (People v Schellenbach, 67 AD3d 712, 713 [2009], quoting People v Hudson, 217 AD2d 53, 55 [1995]). In addition, defendant's lack of a criminal record, her prior military service and the possibility that a conviction in this case will render her ineligible to reenlist in the military are insufficient to justify a dismissal in the interest of justice (see People v Diggs, 125 AD2d 189 [1986], lv denied 69 NY2d 745 [1987]; People v Varela, 106 AD2d 339 [1984]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 07, 2015